Life and death before birth: 4D ultrasound and the shifting frontiers of the abortion debate

The development of 4D ultrasound technology has democratised fetal imagery by offering direct visual access to realistic images of the fetus in utero. These images, which purport to show a responsive being capable of complex behaviour, have renewed debate about the personhood of the fetus and the adequacy of current abortion regulation. This article considers recent abortion law reform initiatives in the United Kingdom and the United States and observes two shifts in the frontiers of these debates. The first concerns a shift from viability to sentience as a criterion of legal significance. The second concerns a shift toward constructing abortion in terms of feticide as distinct from the termination of pregnancy. Both strategies seek to deploy morphological similarities between the sentient fetus and newborn baby as a basis for extending law's dominion over the fetus.     

UK Abortion Law: Reform Proposals,Private Members’ Bills,Devolution and the Role of the Courts

UK abortion law remains unsettled, and subject to on‐going controversy and reform. This article offers a comprehensive critique of all reforms implemented or proposed since 2016. It examines reforms proposed in both Houses of Parliament and contextualises them within a public law analysis, showing both that the complex parliamentary processes relating to Private Members’ Bills have frustrated reform attempts, and that these attempts have been contradictory in their aims between the two Houses. Secondly, it examines the unique positions of Northern Ireland, Scotland and Wales to show the extent to which devolutionary settlements have influenced both reforms and executive involvement. Finally, it examines the potential impact of the courts on abortion law following Re Northern Ireland Human Rights Commission's Application for Judicial Review, showing that the Supreme Court's reframing of the debate in human rights terms is likely to affect abortion law, not only in Northern Ireland, but in the whole of the UK.     

Embryonic discourse: abortion, stem cells and cloning

This Article interprets the debate about abortion and the debate about embryonic research and therapeutic cloning as aspects of a larger history of ideas. The Article suggests that embryos increasingly stand for different truths in discourse about abortion on the one-hand and about embryonic stem cell research and therapeutic cloning on the other. More specifically, the Article suggests that the contemporary debate about the meaning of the embryo in the context both of abortion and of embryonic research bespeaks a widespread transformation in Western, and especially American, society during the last three or four decades. At base, that transformation involves displacement of an understanding of personhood, particularly in domestic settings that depended on the submersion of individualism with an understanding of personhood that values autonomous individuality and that envisions community as the consequence of individuals' distinct choices rather than as a pre-existing, hierarchically structured whole.     

Abortion in Northern Ireland: Has the Rubicon Been Crossed?

On 7 June 2018, the Supreme Court delivered their long anticipated ruling on whether the abortion laws in Northern Ireland are compatible with the European Convention on Human Rights. Although the case was dismissed on procedural grounds, a majority of the court held that, obiter, the current Northern Irish law was incompatible with the right to respect for private and family life, protected by Article 8 ECHR, “insofar as it prohibits abortion in cases of rape, incest and fatal foetal abnormality”. This Supreme Court decision, seen alongside the May 2018 Irish referendum liberalising abortion, and the 5 June 2018 Parliamentary debate seeking to liberalise abortion laws in Northern Ireland and the rest of the UK, places renewed focus upon the abortion laws of Northern Ireland and Great Britain, which suggests that the ‘halfway house’ of the Abortion Act 1967 Act finally be close to being reformed to hand the decision of abortion to women themselves.     

The new regulation of abortion in Spain

The enactment of Law 2/2010 on Sexual and Reproductive Health and on Voluntary Interruption of Pregnancy represents a radical change in the regulation of abortion in Spain. The law moves from the medical indication model that has been in place since 1985 (which established certain cases in which abortion was legal) towards a time-limit model that, with some exceptions, allows free abortion during the first 14 weeks of pregnancy. Along with the hot debate that this fundamental change has caused, other features of the law have also arisen as a source of conflict, including the regulation of the informed consent of underage women for having an abortion and the rules regarding the conscientious objection by healthcare professionals.     

Natural Law: Alive and Kicking? A Look at the Constitutional Morality of Sexual Privacy in Ireland

Abstract. This article discusses the role of moral argument in the Constitutional case law of the Irish courts. It looks at the debate on the constitutional morality of sexuality in four major cases: a 1973 case protecting the right to use contraceptives; a 1984 case which upholds discrimination against gay men; a 1987 case limiting access to abortion information; and a 1992 case which finds a limited right to abortion in the Constitution. These cases show the role of the courts in contributing to a debate on political morality, both proposing new visions of political morality, and elaborating on the requirements of the current one.     

Morgentaler v. The Queen in the Supreme Court of Canada.

In Morgentaler v. R., the Supreme Court of Canada struck down the abortion provisions in the Criminal Code. In a five to two split, a majority of the Supreme Court judges found that section 251 offended a pregnant woman's constitutionally protected right not to be deprived of her "life, liberty, and security of the person." Sheilah Martin reviews the three majority judgments and focuses on the decision written by Madame Justice Wilson. She believes that Madame Justice Wilson's opinion merits special attention in several regards: her conclusions on the constitutional rights of pregnant women; her recognition and validation of women's perspectives on abortion; and her approach to balancing women's interests in reproductive self-determination against the state's interest in regulating reproduction. Sheilah Martin concludes that this decision will reverberate far into the future. Even though it fails to establish clear guidelines concerning governmental power to control access to abortion, its principles outline the legal framework in which future litigation will occur, and it will limit and shape the terms of any ensuing political debate. In addition, Madame Justice Wilson's judgment holds great promise for those looking to the Court to promote the rights of women and other historically disadvantaged groups.     

The abortion-breast cancer connection

This article examines the abortion breast cancer link in some historical scientific detail, offering a perspective on an issue that is at the center of a long-running public policy debate that plays out in legislatures, courtrooms, and newspaper editorials, as well as in scientific and medical journals. Even as politically correct studies have been promulgated to neutralize the data proving the abortion breast cancer link, even stronger data have emerged in recent years that firmly link abortion to premature births in subsequent pregnancies, which in turn raise the risk of breast cancer in mothers and cerebral palsy in prematurely born children.     

Abortion in Israel: Community, Rights, and the Context of Compromise

In contrast to American understandings of abortion as a uniquely tragic dilemma, the Israeli abortion issue is a tangential controversy in a larger debate over the relationship between the state's national and democratic identity. The divergent paths of abortion politics in Israel and the United States reflect important differences in underlying religious doctrines, geographical size, feminist ideologies, and the immediacy of other social cleavages. More profoundly, the two abortion stories are the product of distinct understandings of the mutual obligations between citizens and their state and of the relationship between individual and collective rights and duties. While these differences may account for the capacity of Israeli activists on both sides to forge pragmatic compromises, the stability of these policies is uncertain both because of changing Israeli priorities and the import of American conceptions of the abortion dispute.     

RU 486 examined: impact of a new technology on an old controversy

Abortion is an extremely divisive issue in American politics and culture. Prothro begins this Article by analyzing the current legal standards governing reproduction, which draw a sharp distinction between abortion and contraception. Prothro then examines the function of RU 486, demonstrating that it acts both as a contraceptive and as an abortifacient. Because of this dual capacity, RU 486 does not fit neatly into the current legal framework. Prothro concludes this Article by arguing that RU 486 should force the Supreme Court to create a new framework for the "procreative right." Prothro argues that this new framework should treat the procreative right as a continuum, basing legal protections on a close analysis of the rights at stake, rather than on artificial distinctions that do not accurately mirror the physiological process of pregnancy. This new continuum analysis, Prothro contends, will expand and deepen the abortion debate by focusing it on the broader issues underlying the current debate.     

MODELING CRIMINAL CAREERS*

A stochastic model of criminal careers embodying the assumptions of Gottfredson and Hirschi (1986, 1988) is used as a tool to examine the arguments and claims that have been raised in the recent debate over the nature of criminal careers. The model is used to fit aggregate career data in different jurisdictions and to explain racial and sex patterns in recidivism data. Some of the arguments that have been deployed on both sides of this debate are shown to lack validity. Nullius in verba. —Motto of the Royal Society     

An ethics ensemble: abortion, Thomson, Finnis and the case of the violin-player

Abstract.  This paper considers approaches to the ethics of abortion and putative links to "rights" debates. In particular, it revisits two papers on the topic from the early 1970's, written by Judith Jarvis Thomson and John Finnis respectively. Consideration of the discourse produced by these papers to some extent reveals the strategic importance of linguistic and conceptual organisation—the rhetorical forces underlying claims to disinterested, analytical standing. In particular, the paper reviews the practical ethics analogy proposed by Thomson; the deployment of "Hohfeldian" rights analysis by John Finnis, the link to the abortion debate and the broader implications of such deployment in its relation to current "rights" discourse.     

Speech, privacy, and the power of the purse: lessons from the abortion "gag rule" case.

In Rust v. Sullivan, 59 U.S.L.W. 4451 (1991), the US Supreme Court ruled that neither the privacy interests of family planning clients nor the 1st Amendment interests of their counselors prevented the government from banning all discussion of abortions in federally funded family planning clinics. In doing so, the Court also reaffirmed its view that the state and federal legislatures have virtually unlimited discretion in limiting or conditioning social welfare programs, a view having even greater long-term implications for American health policy than the implications of Rust for the constitutional protection of abortion. Rust upheld the Department of Health and Human Services' 1988 directive prohibiting the use of any funds from Title X of the Public Health Service Act (authorizing family planning programs) in programs where abortion is a method of family planning. This means that a clinician may lawfully respond to a client's inquiry about abortion only with a denial that abortion is an option. Thus, while allowing women the constitutional protection to chose an abortion, the Court has allowed the legislature to freely use the power of the purse to discourage or prevent the choice of abortion. Rust's greatest impact may well be in its acceptance of the enormous power wielded by the government over funded activities, especially in health policy. Justice Rehnquist believes there is not constitutional right to health, welfare, or any other government benefit; the legislative branches of the government cannot be required by judicial interpretation of the Constitution to provide any particular benefit or service to anyone. Even when the government chooses to fund a particular benefit, it is free to condition that benefit with virtually no judicially enforceable limits on that discretion.     

Bracket creep in Australian abortion indications: when did rubella arrive?

This article highlights a common misconception about abortion law that is apparent from reading Harriton v Stephens (2006) 226 CLR 52; namely, that fetal abnormality forms a prima facie case for lawful abortion across Australia. This fallacy stems from the legacy of British law drafted in the aftermath of the thalidomide crisis of the early 1960s, and continues to shape beliefs about Australian abortion law in society and within the judiciary. The article notes the fundamental contradictions between British-style law that provides for abortion on the ground of fetal abnormality and New South Wales case law that provides for lawful abortion in regard to the health and wellbeing of the woman. The author concludes that it is misguided and erroneous to configure abortion law in terms of the fetus inconsistent with the tradition of abortion law, and New South Wales authority.     

Families and future children: the role of rights and interests in determining ethical policy for regulating families

"Rights" and "interests" are key ethical concepts in the debate on the regulation of Assisted Reproductive Technology. This article examines some of the ways in which these terms have been used in the debate, concentrating on their application to the situation of the potential children resulting from the technology. The article argues that, while there have been many misuses of these terms by the parties to the often acrimonious debate, nevertheless ethical regulation depends on maintaining the concepts as of central importance, but at the same time clarifying their use.     

A contractual model of the voting behavior of the supreme court: The role of the chief justice

Political scientists have long debated the role of the Supreme Court in public policymaking. Much of the debate has centered around the issue of judicial independence from political factors. Despite a rather extensive debate in the literature, the question of independence has rarely been subjected to systematic testing. This paper examines the role of the Chief Justice of the Supreme Court in linking decisions of the Court to the desires of Congress. Specifically, the paper focuses on the role of the Supreme Court Chief Justice as an agent of Congress that reacts to budgetary signals sent by the Congress. The resulting relationship between budgets allocated to the Court and decisions reached by the Court are analyzed from 1946 to 1988.     

Future fear: prenatal duties imposed by private parties.

The national abortion debate, rising drug use and homelessness, and the return to conservatism intersect in the trend which increasingly recognizes fetal rights, often at the expense of women's rights. Pregnant women, as never before, are faced with criminal charges and physical invasions in the name of protection of fetuses. This Note examines the sociological forces creating these situations and suggests better solutions. The Note cautions against the future fear that private parties will claim a legal right to interfere with a pregnant woman's behavior, and illustrates the need to prevent it.     

The Imperial Judiciary Meets the Impotent Congress?

The continuing debate over an activist judiciary frequently overlooks the issue whether majoritarian institutions such as Congress can be the principal policy makers for a democracy as well as whether they ought to be. An explicit comparison of the institutional capacities of the Congress and federal courts on abortion funding suggests that Congress is capable of developing representative, responsible, and educative policies. However, a retreat by the "Imperial Judiciary" from an activist posture would not necessarily transfer power from the courts to the Congress but from the courts to unelected bureaucracies within the Congress and the Presidency.     

Examining the constitutionality of Internet filtering in public schools: a US perspective

The use of Internet filters in public classrooms in the USA has been intensely debated, both in terms of its effectiveness and legality. The debate pits concerns to protect students from indecent material against issues of unconstitutional censorship. This paper examines the legal issues addressed in various rulings by the US Supreme Court pertinent to issues raised in the debate over the constitutionality of filtering in the classroom. The rulings and opinions offer valuable insights into the legal issues raised in this debate.     

Post-colonial Fragments: Representations of Abortion in Irish Law and Politics

The Republic of Ireland has become infamous for its legal stance against abortion, especially since it went as far as stopping, albeit temporarily, a young rape victim from travelling abroad for an abortion in 1992. I argue that one of the rationales behind anti-abortion law is a post-colonial urge to mark Irishness distinctively by constructing it in exclusively 'pro-life' terms. I discuss examples of how Irish colonial experiences have been used to justify the effort to keep Ireland abortion-free, and to resist that effort. Representations of colonial history in the context of Irish abortion law and politics have changed over time and between groups. Such changes indicate a need for post-colonial critique to account for the fragmentation of colonialism as it is displaced, a need which the conceptualization of post-coloniality as a historical object can address.